47 Iowa 35 | Iowa | 1877
is to be observed, however, that the statute authorizes the construction only of a, public way. No authority is conferred in the statute to construct a private way. The coal company is proceeding to condemn lands under this statute. If the condemnation is effected under the statute, the way condemned mush be a public way, because the statute authorizes no other. When the plaintiffs allege that the railway of the coal company is a private one, they allege simply that the coal company has established, or is seeking to establish, under the statute, that which under the statute cannot exist. They simply, in effect, allege that that is private which the statute says is, and must be, public. The plaintiffs further allege that the railway is intended to be used by the company for the transportation of its own coal, from the mines of the company to the road of the Central Railroad of Iowa and the road of the Des Moines Talley Railroad Company. It matters not what the secret purpose' and intention of the company may be. It is seeking to condemn land under this statute, and if it makes the condemnation.it must accept all the conditions and provisions of the statute. One of these is that the way - shall be public. We have no doubt that if the coál company condemns the right of way-under this statute, it may be compelled to permit other owners of coal, stone, lead, or other mineral, upon making proper compensation, to have transportation therefor over its road,/’" '
Reversed.